Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.
MPs are right to complain that the ‘Windsor Framework’ is being put to a vote on 22 March without adequate scrutiny. However, that there is a row, again, about scrutiny of an EU deal exposes Parliament’s arrangements in this area as still inadequate – something for which MPs in some respects have only themselves to blame.
Senior Researcher, Hansard Society
Dr Brigid Fowler
Senior Researcher, Hansard Society
Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.
After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.
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Yet again, MPs are having a row with the Government about the scrutiny of an EU deal.
On this occasion, the deal is the ‘Windsor Framework’ agreed between Prime Minister Rishi Sunak and European Commission President Ursula von der Leyen on 27 February 2023 to address problems with the Ireland/Northern Ireland Protocol in the UK-EU Withdrawal Agreement.
At the joint UK-EU level, the Windsor Framework is to be put into effect via a Decision and other instruments of the Withdrawal Agreement Joint Committee. The House of Commons European Scrutiny Committee (ESC) called on the Government not to agree to the holding of a Joint Committee meeting before the end of March, in order to allow more time for scrutiny. However, EU Ministers met on 21 March to sign off on the instruments, and it was confirmed on 20 March that the Joint Committee would meet on 24 March to formally agree them.
At the UK level, in announcing the deal to the House of Commons, the Prime Minister said that “Parliament will of course have its say and there will be a vote”.
The Government is under no legal or procedural obligation to seek Parliament’s approval for the Windsor Framework as such.
The House of Commons could only have had a vote explicitly to approve the deal as a whole if the Government had moved a dedicated standalone motion to this effect, because the Windsor Framework involves different types of legal instruments not covered by any single standing parliamentary process.
Instead, on 16 March, the Government announced that it would regard the House of Commons’ vote on a Statutory Instrument (SI) implementing the ‘Stormont Brake’ element of the Framework, to be held on 22 March, as the promised vote on the deal.
allows a debate of 90 minutes at most (unless the Government were successfully to move a motion to set aside the time limit that normally applies to SI debates under Standing Order No. 16); and
requires them to vote on the deal before due scrutiny can take place.
The Government has scheduled the ‘Stormont Brake’ SI for debate in the Chamber; the default practice would have seen the SI debated in a Delegated Legislation Committee.
The concession of a Chamber debate on the ‘Stormont Brake’ SI aside, MPs are right that UK parliamentary scrutiny of the Windsor Framework ahead of the vote on 22 March and Joint Committee meeting two days later will have been inadequate.
The House of Commons will vote on the ‘Stormont Brake’ SI:
only two days after the SI was published – much more quickly than is normal for draft SIs that require parliamentary approval – and presumably without the Joint Committee on Statutory Instruments (JCSI) or House of Lords Secondary Legislation Scrutiny Committee (SLSC) having been able to report on it in time;
as far as it is possible to tell, without the Government having deposited with the ESC its Explanatory Memorandums (EMs) on the relevant Joint Committee-related documents; and
with Windsor Framework-related ministerial evidence to, or reports by, its Select Committees arriving at most one day in advance, after the ESC scrambled to get the Northern Ireland Secretary in front of it on 21 March (although the Committee arguably wasted time by first seeking, predictably fruitlessly, an appearance from the Prime Minister).
However, MPs’ complaints – particularly those of Conservative backbenchers who provide the Government with its majority – are frustrating and ring somewhat hollow, for two reasons.
First, there is a general credibility problem.
At the start of the 2019 Parliament backbenchers were willing to take the Committee and further stages of the EU (Withdrawal Agreement) Bill in three days, whereas MPs in the previous Parliament would not.
The House then agreed to scrutinise and approve the EU (Future Relationship) Bill in one day on 30 December 2020.
Since then, and the exigencies of the Covid pandemic and other crises notwithstanding, the House has consistently acquiesced in Government behaviour that has seen legislation proceed without previously-accepted levels of scrutiny time and information.
Second, scrutiny of the Windsor Framework engages general types of parliamentary business where the House has so far shown little enthusiasm for reform, missed opportunities to press for stronger scrutiny arrangements, or actively contributed to the situation that currently arises.
The inadequate scrutiny of the Windsor Framework has not ‘just happened’. If MPs do not seek to establish stronger generalised scrutiny practices when there is not a particular item of business that concerns them, they cannot expect to find those practices in place when there is.
The Windsor Framework row exposes three types of business in particular where scrutiny arrangements are inadequate, especially in the House of Commons.
The good news is that, in all three areas, opportunities are coming up to improve matters.
The Windsor Framework will amend the Ireland/Northern Ireland Protocol in the Withdrawal Agreement – that is, it will result in treaty amendment.
Parliament’s statutory role with respect to treaties is set out in Part 2 of the Constitutional Reform and Governance Act 2010 (the CRAG Act).
The CRAG Act is inadequate as a basis for Parliament’s engagement with treaties, but – by establishing a 21-day pre-ratification period – it can at least prevent the Government from rushing to bind the UK in international law. However, the CRAG Act is of no use to parliamentarians in the current case because it does not apply to the proposed Withdrawal Agreement amendment. Whether and in what cases the CRAG Act applies to treaty amendments (as opposed to new treaties) remains unclear and contested, but none of the three previous amendments to the Withdrawal Agreement has been made subject to the Act.
The House of Commons, as a whole, has largely supported the Government’s resistance to reopening the CRAG Act or otherwise establishing stronger generalised treaty scrutiny arrangements.
However, the House’s first Select Committee report since the Brexit referendum on scrutiny of treaties in general (as opposed to just free trade agreements) is expected from the Public Administration and Constitutional Affairs Committee before the summer recess.
The Protocol is to be amended by a Decision of the UK-EU Withdrawal Agreement Joint Committee, which is empowered to amend the Agreement by its Article 164. The Windsor Framework also involves a range of other Joint Committee instruments.
In Parliament, scrutiny of the Joint Committee takes place primarily through the ESC in the Commons and the European Affairs Committee (EAC) in the Lords, building on the inherited European scrutiny system that operated during the UK’s EU membership.
Since Brexit, the ESC has complained consistently about its inability to carry out satisfactory scrutiny of the Joint Committee, as a result of the Government’s failure to provide information and documentation in good time before Joint Committee meetings. In October 2022, new arrangements were agreed between the ESC and EAC and the Government that were intended to enable scrutiny practices that both sides could live with. The ‘Windsor Framework’ meeting of the Joint Committee on 24 March is the first test of these arrangements. However, the ESC and the Government seem still to be having the same argument as ever.
The immediate problem is that the new arrangements do not pin the Government down on the relative timings of its submission of relevant documents to the ESC, and the holding of Joint Committee meetings: the Government only committed to submitting documents “before meetings wherever possible”.
Nevertheless, in its report on the new arrangements, the ESC declared itself content with the “balance” that they struck as regards “providing information on important matters – such as binding decisions taken in joint UK/EU bodies set up under the Withdrawal Agreement”.
The ESC also does not appear to have sought the wider support of the House for its campaign for improved scrutiny of the Joint Committee – by, for example, seeking changes to its Standing Order, which would require a Chamber debate. Bizarrely, the ESC told the Procedure Committee that the October 2022 arrangements do not affect its Standing Order, as “they relate to the types of EU documents the Government will facilitate scrutiny of”, even though the Standing Order (No. 143) consists in part precisely of a listing of the types of EU documents which will be subject to scrutiny. (The Standing Order anyway has not been substantively amended since before the Lisbon Treaty came into force.)
The two Committees and the Government agreed to review the October 22 arrangements this summer, and it is to be hoped that the Commons takes the opportunity to draw lessons from the Windsor Framework experience to make stronger demands regarding scrutiny of the Joint Committee.
In terms of UK legislation, it appears that the Windsor Framework is to be implemented through SIs. Whether the UK domestic law that implements UK treaty commitments takes the form of primary legislation, delegated legislation, or a combination of both, is the result of the powers that are – or are not – already available to the Government on the statute book, plus any specific statutory requirements.
Especially since Brexit, SIs are fairly routinely being used to implement UK commitments under international treaties. This gives MPs who wish to be sure of being able to debate and amend treaty-implementing legislation an interest both in the powers that Bills grant to Ministers to make treaty-implementing SIs, and in the parliamentary scrutiny procedures to which those SIs are subject.
However, when the Commons voted in January 2020 on an SNP amendment to the EU (Withdrawal Agreement) Bill that would have prevented the Government from being able to use delegated powers under the Bill to amend the Northern Ireland Act 1998 (and so make the ‘Stormont Brake’ SI that is being debated on 22 March), the House voted by 340 to 262 against, with no Conservatives voting in favour.
Fowler, B. (21 March 2023), Windsor Framework scrutiny complaints: Why MPs should look to themselves (Hansard Society blog)
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